Sunday, July 31, 2011

Holy Crap! If it were April 1 I'd be certain this was a joke. Check out this amazing news out of Florida, as reported by John Schwarz at the New York Times:

A federal judge in Orlando on Wednesday declared the state’s controlled-substances laws unconstitutional. A 2002 Florida law eliminated the requirement of a “guilty mind,” or “mens rea,” as part of a drug offense. Briefs attacking the Florida law, in which a defendant need not know that a substance is illegal to be convicted of possessing or selling it, had been filed by groups including the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and dozens of law professors. Judge Mary S. Scriven of Federal District Court threw out the drug delivery charges against Mackle Vincent Shelton, and ordered a new sentencing hearing on other charges. Florida’s unique law expressly eliminating mens rea for drug offenses, the judge wrote, is “atavistic and repugnant to the common law.” The state is expected to appeal the decision, which could leave hundreds, if not thousands, of convictions in question and affect pending cases.

Here's the opinion (pdf) While Florida's law appears to have been especially egregious, if the feds actually began to require a stronger mens rea element in all state and federal statutes - not just drug laws but a massive array of government dicta on as many subjects as one may imagine - it would transform the modern legal system for the better. A recent Wall Street Journal story (mentioned briefly in this Grits post) lamented the lack of a mens rea component in many recent federal laws:

Some of these new federal statutes don't require prosecutors to prove criminal intent, eroding a bedrock principle in English and American law. The absence of this provision, known as mens rea, makes prosecution easier, critics argue.

A study last year by the Heritage Foundation and the National Association of Criminal Defense Lawyers analyzed scores of proposed and enacted new laws for nonviolent crimes in the 109th Congress of 2005 and 2006. It found of the 36 new crimes created, a quarter had no mens rea requirement and nearly 40% more had only a "weak" one.

Some jurists are disturbed by the diminished requirement to show criminal intent in order to convict. In a 1998 decision, federal appellate judge Richard Posner, a noted conservative, attacked a 1994 federal law under which an Illinois man went to prison for three years for possessing guns while under a state restraining order taken out by his estranged wife. He possessed the guns otherwise legally, they posed no immediate threat to the spouse, and the restraining order didn't mention any weapons bar.

"Congress created, and the Department of Justice sprang, a trap" on a defendant who "could not have suspected" he was committing a crime, Judge Posner wrote.

The notion of mens rea is the flip side of the old saying, "Igorance of the law is no excuse." The latter sentiment may be technically true, but for example, after this legislative session Texas now has more than 3,000 felonies on the books (the Board of Pardons and Paroles will issue the exact count later this year). There are another 3-4,000 (often redundant) federal felonies, along with countless misdemeanors, myriad state and federal regulations, and a vast patchwork of municipal ordinances. Taken together, there's not an attorney in the land who knows what they all are, much less any average citizen. Ignorance may be no excuse, but prosecuting and punishing people for "wrongdoing" where there was no criminal intent, no victim, etc., turns the criminal justice system into a Kafkaesque joke.

Criminal law is best suited for cases with criminal intent, not accidents or mistakes, what used to be termed "torts." Civil suits serve a legitimate purpose in resolving non-criminal disputes, but tort reform, mandatory arbitration, etc., have placed a burdensome yoke on the ability of civil courts to administer justice. So increasingly, people instead seek justice in criminal courts, with accidents and mistakes now more frequently criminalized instead of just incurring civil liability. The increasingly radical limitation of civil law over recent years created a vacuum which was eagerly filled by cops, courts, and an array of special interests seeking to create their own specialized crimes and related punishments. The diminished role of civil law as a cause of overcriminalization was briefly addressed in the WSJ article:

Another area of concern among some jurists is the criminalization of issues that they consider more appropriate to civil lawsuits. In December, the Ninth Circuit Court of Appeals, which is considered liberal, overturned the fraud conviction of a software-company executive accused of helping to issue false financial statements. The government tried "to stretch criminal law beyond its proper bounds," wrote the Circuit's chief judge, Alex Kozinski.

Civil law, he said, is a better tool to judge "gray area" conduct—actions that might, or might not, be illegal. Criminal law, he said, "should clearly separate conduct that is criminal from conduct that is legal."

In the Florida case, the court called the lack of a mens rea requirement "atavistic and repugnant to the common law." Will this decision signal the beginning of a new reevaluation of mens rea by the federal courts, or will it turn out to be a one-off, non-replicable tactic ill-suited for challenging other strict-liability crimes? Time will tell, but it's a subject ripe for more open and honest discussion.

Meanwhile, imagine the mess officials must now thrash out in Florida if the decision stands: Are old convictions invalid? Must new charges be dropped? Is the state liable to the accused for arresting, prosecuting and punishing under an unconstitutional law? ¿Quien sabe? What a zoo this could become for the Sunshine State!

Friday, July 29, 2011

Good news for opponents of junk science in the courtroom: Brandon Barnett at Liberty and Justice for Y'all brings word that the First Court of Appeals in Houston has once again benchslapped testimonial evidence in a capital murder case from Fort Bend Sheriff Deputy Keith Pikett's bloodhounds, when yesterday they:

issued an opinion in another case involving the Fort Bend County dog handler. Much like the last case I posted about, the dog handler was used to match a murder suspect's scent with the scent of certain evidence from the crime scene. This time, however, the scent lineup evidence did not even make it to the trier of fact. After hearing the views of competing experts, the trial judge ruled that the evidence was inadmissible as unreliable. Some of the flaws in the dog handler's methodology that the court noted were:

His foil samples are old samples, while the scent sample of the suspect is fresh;

He does not do negative runs where the sample of the suspect is excluded;

He uses multiple dogs during each test rather than allowing the dogs to work alone; and

He is mostly self-taught and his methodology is something he created.

On appeal, the State argued that the trial judge abused his discretion in refusing to admit the evidence. The First District upheld the trial judge's ruling, holding that it was reasonable for the trial court of conclude that the scent lineup evidence was unreliable.

The trial court had excluded dog scent evidence as unreliable - good for District Judge Clifford Vacek - and and the First Court of Appeals upheld his ruling. The trial court also made the following conclusions of law:

2. Human scent identification by a canine is not sufficiently reliable to be admitted in evidence in a criminal trial. See Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1992).

However, the First Court ruling (pdf) stops short of issuing those words from Justice Jane Bland's own pen, but she agrees that the record supports the trial court's findings of fact and upholds decision to suppress dog-scent evidence. Regular readers will recall that dog scent lineups had already been discredited at the Court of Criminal Appeals, which may soon be asked to rule on suppressing dog-scent evidence altogether if the state (as I hope) chooses to appeal the First Court's ruling to the state's highest criminal court.

What does this mean for the 2,000 or so past cases where Texas courts already allowed this now-deemed unreliable testimony? On that the jury is out. For now we know for sure the evidence won't be allowed in criminal trials henceforth in Texas' First District, and especially since Deputy Pikett has retired and no one else in the state performs the procedure, possibly this may be the beginning of the end for the use of dog-scent lineups in Texas.

For more background on dog scent lineups see this public policy report (pdf) from my employers at the Innocence Project of Texas, published while I was furloughed from the group for reasons of fiscal austerity.

Here are several stories that caught my eye lately that I don't have time to write about in detail but which deserve Grits readers' attention:

Rare execution stay to examine innocence claim
The Texas Court of Criminal Appeals issued a rare execution stay in the case of Larry Swearingen, who contends he is actually innocent, reports the Texas Tribune. The basis for the appeal is that the medical examiner who testified at trial changed her opinion after she "reviewed new evidence and submitted an affidavit in which she concluded the murder happened within two weeks of the day Trotter's body was discovered." That would put the murder at a time when Swearingen was incarcerated on traffic warrants and couldn't have committed the murder. Prosecutors say other, circumstantial evidence was strong enough to convict, while the victim's Mom says of the court decision: "None of them have the balls" to execute Swearingen. (Not a critique you hear too often of the Texas Court of Criminal Appeals!) The recanting ME reminds me a bit of another recent capital case where the ME changed testimony, but the CCA majority decided they didn't care.

Craig Watkins stonewalling Dallas News
Dallas DA Craig Watkins' decision to ice out the Dallas Morning News, which covers the activities of his office on a daily basis, is one of the most childish and bone-headed moves I've seen from a politician in many a year. The irony: They've got to fill up the space around the advertising either way, and they're still going to cover crime and courts, so all the DA has done is ensure that only his critics ad opponents are quoted when critical stories are published. Mr. Watkins is under the false impression that everyone who says an unflattering word about him, his office, his policies, his bizarre hot-and-cold media flirtations, etc., is his enemy. Sometimes, the ones consistently telling you the truth turn out to be your only friends.

Not all exonerees end up millionaires
The Dallas Observer has the story of one Texas' exonerees, Nax Karage, who didn't track the storyline of "newly minted millionaires riding off into the sunset and living out their lives in material comfort, if not true peace." Filing for compensation back when the state paid a flat $25K per year incarcerated, his family scraped by until the Tim Cole Act afforded him a monthly annuity in 2009 - around $2,400 per month for the seven years he was incarcerated. He considers it unjust that others got more, and I can understand why. But from a political perspective, it was a godsend just to get the annuity for those who'd already applied under previous compensation schemes. What made the Lege go for that much was the story of Wiley Fountain, who's also mentioned in the article. He'd accepted compensation but a couple of years thereafter was pushing a shopping cart around South Dallas, homeless. The annuity aimed to prevent that recurrence, and though I wish Karage received all he wanted, I'm certainly glad he got that much.

Jail space and bail amounts
Ramping up for a jail-bond vote in November, Coryell County officials are complaining to the local media that jail overcrowding is causing judges to set lower bails, but no judges interviewed agreed, according to the Killeen Daily Herald.

Moving Day at Al Price
Employees at the old TYC Al Price facility in Beaumont are packing up to leave for good. Their employment ends this week.

'The factor of faith in crime reduction'
Via Doug Berman, this subhed "is the headline of this recent op-ed in the Houston Chronicle by Byron Johnson, a Professor at Baylor University who is the author a notable new book titled 'More God, Less Crime: Why Faith Matters and How it Could Matter More.' (2011)."

Traced guns lead back to 'Fast and Furious'
The whole mess surrounding the feds' blown "Fast and Furious" gun smuggling investigation just gets worse and worse. Now the guns sold to Mexican cartels are beginning to show up frequently at crime scenes.

Thursday, July 28, 2011

If one needed further evidence that the Texas Court of Criminal Appeals is an extremely divided body, one need look no further than the decision by Judge Larry Meyers - usually a member of the Keller-Hervey pro-prosecution wing of the CCA - has decided to run against Sharon Keller as presiding judge in 2012 in the Republican primary, leaving an open seat on the CCA. Reported the Fort Worth Star-Telegram ("Fort Worth judge to run for top spot on Court of Criminal Appeals," July 27):

Texas Court of Criminal Appeals Judge Lawrence "Larry" Meyers confirmed Wednesday he is planning to run for the court's top spot, challenging controversial presiding Judge Sharon Keller in next year's Republican primary.

Meyers, of Fort Worth, was the first Republican elected to the Court of Criminal Appeals in 1992 and is currently its longest serving member.

On Tuesday, he sent a brief memo to his colleagues explaining his decision to seek higher office, implying that Keller has held the presiding judge position for too long. Keller has been on the court since 1994 but has served as presiding judge since 2000.

"The normal term for this position is 8-10 years. As such, it is time to rotate the presiding judgeship on our Court," Meyers wrote in the memo.

Keller, now in her second term as presiding judge, said she wasn't aware of Meyers' plans to run against her until the memo was circulated to members of the court.

The Startlegram mentions that this isn't the first time a member of the CCA has run against Keller. "Tom Price, currently the court's third most senior member after Keller and Meyers, ran against her in the Republican primary in 2000 and 2006." She won their last matchup by a 53-47 margin, but Price is a member of the more moderate wing of the court, while Meyers' challenge comes from a judge who's sided with Keller on most topics - and even went on a damage-control tour with the media on her behalf at the height of her troubles - but who now appears to have had enough of her. That coupled with Judge Keller's bouts of bad publicity could give the race a different dynamic in next spring's GOP primary.

One named after a former Texas Speaker of the House, no less? At 11 a.m. today you get your chance. Reports AP:

A prison that a Texas High Plains town hoped would provide a bonanza but instead went broke is going on the auction block.

Littlefield is putting the Bill Clayton Detention Center up for auction Thursday with a $5 million minimum opening bid. Tulsa, Okla.-based Williams & Williams Worldwide Real Estate Auction is handling the bidding. Its throwing in the furniture, linen, computers, kitchen supplies and other equipment contained in the 30-acre complex 36 miles northwest of Lubbock.

Littlefield built the 373-bed, medium-security prison with proceeds from an $11 million bond issue and signed The GEO Group to run it. The hope was for states experiencing prison overcrowding to pay to house its inmates there.

Instead, escapes, corruption and living conditions prompted states to withdraw their inmates, leaving an empty prison.

In a story behind their paywall, the Dallas News reported that there were at least six interested buyers, including private prison firms and "other municipalities needing more space for inmates." (We may safely assume Lubbock isn't among them, since they've got a near-empty jail competing with the Littlefield facility.) Go here to bid or watch the auction online.

I'm not sure I've ever heard of an actual auction for a jail or prison unit, but this is the inevitable, last-ditch outcome for counties that speculatively built extra jail capacity (or in this case a prison unit on spec), but couldn't lease out the beds once construction was complete. As Grits has reported in the past, a similar fiscal drama is playing out with the "Doomsday Deal" in McLennan County and a long list of empty, speculative jails in Texas, so unless there's a new source of prisoners out there - private prison firms are banking on immigration detention - this may not be the last Texas jail or prison unit we see auctioned off like some defaulted property on the steps of the county courthouse.

Wednesday, July 27, 2011

One issue where the new chairman of the Texas Forensic Science Commission, Dr. Neezam Peerwani, disagrees with his predecessor is on the duty for forensic scientists to correct past mistakes when science changes or documentable errors are made. The issue arose in the commission's report on the Todd Willingham case. After that investigation it became evident that many hundreds of old arson convictions relied on what now is all but universally acknowledged as junk science. (Many of those convictions are likely still legitimate, but there's also a significant chance of error.)

The same conundrum arises in Deputy Keith Pikett's 2,000 cases in which he presented evidence from so-called dog-scent lineups which even the Texas Court of Criminal Appeals recognizes has little evidential value. But should defendants in old cases be notified? By whom? Nobody knows. The National Academy of Sciences put the matter on the table in the grandest fashion in 2009 when it published a devastating critique of the subjectivity and unscientific nature of much of 20th Century forensic science.

The feds (and every other state) are struggling with this, too: When the FBI discovered that their supposed technique for identifying which batch from a factory a particular bullet came from was a bunch of horsesh#%, the feds contacted all the defendants in cases where the evidence was used at trial, but not where the cases resulted in plea bargains. Grits thinks they should notify every defendant and let the chips fall where they may. While there's some evidence that the proportion of innocent defendants who plea guilty is low, I suspect the number of guilty defendants who pled out who would turn around and contest their conviction would also, in practice, be low.

Past FSC Chairman John Bradley resisted the recommendation to review old cases, but Dr. Peerwani has said he thinks it's necessary and the rest of the commission so far appears to agree with him, though nobody has taken more than the first few tentative steps down that road. A profile of the new FSC chief last week by Brandi Grissom in the NY Times/Texas Tribune said that, in the Willingham case, "Dr. Peerwani agreed with other experts not only that the science was faulty but also that forensic examiners had an ethical duty to inform prosecutors of potential flaws in their work."

The same issue arises from a recent blog post about alleged problems at the Southwestern Forensics Institute in Dallas titled "Covering One's Backside - Forensics Edition," by Paul Kennedy over at The Defense Rests, which opens:

You run a crime lab forensics institute that specializes in assisting the state in gathering and analyzing evidence. On a logbook you see that a reagent used for blood testing was used for years after its expiration date. The notes indicating the expiration date aren't initialed and look like they were added after the original entries in the book. You determine that notes were written by the analyst. You speak with the analyst and ask him (or her) to initial the notes regarding the expiration date.

Voila! Job well done.

No need to request corrective action. No need to alert anyone that your lab techs were using chemicals that had passed their expiration dates. No need to inform prosecutors that there might be a problem with the analysis your lab performed. No need to inform defense attorneys that the tests might not be valid.

You draft a memo and attach it to the back of the logbook.

No e-mails to track down and preserve. No Corrective Action Requests subject to Open Records requests. No memo in a file that some pesky auditor might find.

An earlier Defense Rests post questioned whether the same lab director, Stacy McDonald, of covering up possible contamination at the lab, accusing her of a bureaucratic mentality that values form over function, "more concerned about an analyst initializing notes about expired reagents than the fact that your lab was using expired reagents while conducting forensic tests that would be used by the state at trial."

I don't know anything about Ms. McDonald and can't judge her motives, but surely the question arises: When expired reagents were used to analyze evidence for court, should the state notify defendants whose convictions were secured based on that evidence? What is the duty for post facto rectification of scientific errors? Answers to those questions will be forthcoming in the next 5-10 years or so as courts and policymakers struggle nationwide with reevaluations of forensic science, and Peerwani and the FSC could play a powerful role in shaping those answers in Texas.

But for its problematic pedigree, Mexico's marijuana might be hailed as a marketing miracle.

The much-maligned weed has suffered decades of punishment — burned, poisoned, ripped from the earth by its roots. Customers have been jailed, suppliers battered by literally cutthroat competition. Better products from Colombia, California and countless suburban back-rooms have somewhat eroded its popularity. Governments refuse to make it honest.

Yet, this pot has persevered. Production grows, quality improves and exports northward hum along. Despite decades of U.S. officials' efforts against it, Mexican marijuana remains widely available, frequently used and commonly disregarded as a danger.

"They are never going to stop it," said Dan Webb, a recently retired anti-narcotics lieutenant with the Texas Department of Public Safety, who now teaches drug enforcement at Sam Houston State University.

"It is just like Prohibition," Webb said, comparing Mexico's cannabis trade to the boom in liquor smuggling after the U.S. government outlawed alcohol sales decades ago. "As long as there is a demand, somebody is going to come up with a supply."

Then again, there's that dark legacy. Marijuana sales to American consumers largely finance the gangster warfare that's killed upwards of 40,000 Mexicans in less than five years.

Though its slice of the gangs' income may be shrinking — the thugs long have profited from cocaine, heroin and methamphetamine, as well as kidnapping, extortion and piracy — marijuana remains a solid bet. Call it the money market fund of the Mexican mob.

"Marijuana remains the constant commodity of choice for the drug cartels because of end user demand and the ease of production," said Tony Garcia, South Texas director of an intergovernmental police alliance that keeps tabs on the illicit drug trade. ...

Cheap to grow and relatively easy to bring to market, Mexico's marijuana provides sustenance for entire mountain communities and wide profit margins for the gangsters. One widely challenged U.S. government study five years ago estimated that cannabis exports provided some 60 percent of the gangs' revenues. Other estimates range from 15 to 40 percent.

Prohibition of alcohol too, of course, had a "dark legacy" to overcome, and if marijuana were ever legalized I suspect it would overcome its own disreputable past as quickly as did beer, wine and spirits. And though change will be slow in coming, even in Texas opposition to pot legalization is slowly dissipating. Earlier this year when the Texas Tribune asked voters about potential revenue sources, legalizing and taxing pot, while opposed by 59% of the public, was more still popular than more traditional revenue sources like raising the sales, business or gas taxes. According to the Chron, "surveys suggest at least 11 percent of Americans over age 12 regularly puff from a joint, pipe or bong." That's a whole lot of folks.

This is a Less Government issue I'd love to see the Tea Partiers and Right-on-Crime folks seriously take on.

Last Friday, thanks to the generosity of Grits readers, I attended a post-legislative briefing put on by the Texas District and County Attorneys Association. The theme of the event, if there was one, was overcriminalization. TDCAA lobbyist Shanon Edmonds estimated that the Texas Legislature created 53 new crimes in the most recent session, up from an average of 39, by his count, over the prior decade. That's only new crimes, and doesn't included dozens of other penalties that were "enhanced" (increased), including three new non-capital crimes boosted to life without parole.

Why do they do it? Edmonds blames the media following the lead of Nancy-Grace types in pursuit of ratings instead of truth. As an example, he cited the proposal for "Caylee's Law" following the recent Casey Anthony verdict in Florida, which would make it a federal crime not to report a missing child. According to Edmonds the law is unnecessary in Texas. There are at least seven crimes on the books here, he said, with which Anthony could be charged besides murder, including tampering with physical evidence - a second degree felony. Even though it's unnecessary, Edmonds declared "I guarantee you" the Lege will pass Caylee's Law in 2013. He thinks they simply won't be able to help themselves.

Relatedly, the Wall Street Journal published a story this week criticizing the awesome and growing number of federal crimes on the books. This notable excerpt attempted to quantify the growth:

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.

Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000. The ABA's report said "the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades."

A Justice spokeswoman said there was no quantifiable number. Criminal statutes are sprinkled throughout some 27,000 pages of the federal code.

There are many reasons for the rising tide of laws. It's partly due to lawmakers responding to hot-button issues—environmental messes, financial machinations, child kidnappings, consumer protection—with calls for federal criminal penalties. Federal regulations can also carry the force of federal criminal law, adding to the legal complexity.

In Texas we have the same problem with counting the number of crimes. Shannon Edmonds' estimates of new crimes seldom match up precisely with the count from the Board of Pardons and Paroles (BPP), which after each legislative session counts the new felonies because each offense must be assigned a risk level for purposes of determining parole. After the last session the BPP counted 2,383 felonies on the books, including 11 involving oysters. (Lying about the size of a fish in a tournament is the only new seafood related felony I'm aware of from the 82nd session.) Marc Levin of the Texas Public Policy Foundation has his own, lower count using a different methodology - around 1,700. And none of those numbers include misdemeanors, municipal Class C offenses, or agency rules that carry the force of law. For those reasons and others, just like with the feds, nobody can agree on a number.

Bottom line: How many crimes are there? So many they cannot be counted, like the stars in the sky. Which raises the question: How can you know for sure if you're breaking one?

Midland County officials are appealing to the state for reconsideration after it stripped $1.2 million in funding from the Court Residential Treatment Center and effectively closed the facility.

"This is devastating for us," said Jed Davenport, director of the Community Supervision and Corrections Department.

The 50-bed facility is one of eight statewide being closed, Davenport said. Other facilities sustained a reduction in funding. Between the cuts, 343 beds in Texas are being lost for substance abuse treatment through the Texas Department of Criminal Justice.

Judge Rodney Satterwhite, of the 441st District Court, said they were alerted on July 11 of the closure and received a formal letter explaining the CRTC's defunding on Monday.

"It provides a valuable service to the citizens of Midland County," he said, speaking to county commissioners. "We as the judges of Midland County have decided we are going to appeal the decision."

Davenport said historically 73 percent of medium-risk inmates and 61 percent of high-risk inmates who complete the CRTC program are still clean three years later. This year, they are on track to have a success rate of 88 percent or higher, he said.

The program includes an intensive treatment period, counseling, support groups and measures to prepare inmates for life after treatment, such as GED attainment and work experience.

This results directly from the decision by the Texas Legislature to use money from closing the Central Unit to pay for private prison beds instead of funding treatment and diversion programs. Penny wise; pound foolish. I don't know who they think they're going to "appeal" the decision to, though. The 82nd Legislature has ended and there's no way in hell Governor Perry would call a special session over that. A more realistic approach might be to solicit grant funds from the Governor's Criminal Justice division to pay for treatment.

Monday, July 25, 2011

Indigent defendants with court-appointed lawyers receive worse outcomes than those with public defenders or retained counsel, according to a new paper from Thomas Cohen at the Bureau of Justice Statistics. He "examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing. Results show that private attorneys and public defenders secure similar adjudication and sentencing outcomes for their clients. Defendants with assigned counsel, however, receive less favorable outcomes compared to their counterparts with public defenders."

About 80% of criminal defendants nationally, says Cohen, are indigent, with just one in five hiring their own attorney. (The author excluded pro se defendants from the study because he's analyzing which type of lawyer gets better outcomes, but approximately 2% of all defendants proceed without an attorney.) Defendants were more likely to retain private counsel in more serious cases: "7% of defendants represented by private attorneys were charged with rape or other violent crimes, while about 4% of defendants with public defenders or assigned counsel were charged with these offenses."

Nor surprisingly, repeat offenders are more likely to be indigent: "criminal backgrounds were less common among defendants who retained private counsel. Nearly a third (31%) of defendants with private attorneys had no previous arrest history, while only about a fifth of defendants with public defenders (17%) or assigned counsel (19%) had never been arrested." Approximately half of those with public defenders or assigned counsel had a prior felony conviction, compared to 36% for those with private counsel.

The author also found racial disparities in who gets what type of counsel, though they more or less track relative socioeconomic differences among the races: "36% of defendants retaining private attorneys were white compared to 29% with assigned counsel and 26% with public defenders. Conversely, a higher proportion of defendants represented by public defenders (44%) or assigned counsel (47%) were black than defendants with the means to hire their own attorneys (34%)."

To get to the meat of the study, "In the nation’s 75 most populous counties, the overall conviction rates were about the same for felony defendants represented by public defenders (73%) or hired attorneys (72%)." However, "Defendants with assigned counsel, in comparison, faced a higher likelihood (78%) of conviction."

Even larger differences showed up at sentencing. "When examining the type of incarceration sentence imposed, convicted defendants represented by assigned counsel were significantly more likely to receive prison sentences compared to those represented by either public defenders or private attorneys. Nearly half (46%) of convicted defendants with an assigned counsel received a prison sentence, while approximately a third of convicted defendants with retained counsel (29%) or public defender (32%) representation were sentenced to prison."

Indeed, there's one critical metric where public defenders appear to be getting better outcomes, even, than privately hired lawyers: "Among convicted defendants sentenced to serve time either in prison or jail, those using public defenders received shorter average sentences than those with private attorneys or assigned counsel. Defendants with public defenders were sentenced to an average of 23 months of confinement, while those with hired attorneys or assigned counsel were sentenced to incarceration terms averaging 31 and 35 months, respectively." The difference in sentence length is mainly due to drug crimes. For reasons I cannot fathom, private attorneys' clients received substantially longer sentences for drug crimes than those represented by PDs: "convicted defendants with private counsel were sentenced to periods of confinement 37% longer than their counterparts with public defenders." I'd never have expected that outcome.

Appointed counsel received even worse sentencing outcomes: Comparing public defenders and appointed counsel, the latter received sentences 33% longer for violent crimes, 22% higher in property crimes, and 40% higher in "public order" offenses.

To summarize: "Indigent defendants represented by assigned counsel received worse case outcomes, particularly for property or drug crimes, than their public defender counterparts." What's more, there is little evidence "in support of the proposition that private attorneys secure better outcomes for their clients. Overall, ... defendants who hired their own attorneys were just as likely to get convicted and actually received longer sentences compared to defendants represented by public defenders."

The paper notes that, "Of all forms of indigent defense, the most popular and widely used are public defender programs." But Texas counties, of course, rely heavily on appointed counsel with only a few, smallish public defender systems around the state. (Dallas' is the biggest, and they supplement their PDs office with appointed counsel.) That's significant because, "In general, defendants represented by assigned counsel received the least favorable outcomes in that they were convicted and sentenced to state prison at higher rates compared to defendants with public defenders. These defendants also received longer sentences than those who had public defender representation."

These data suggest that most indigent Texas defendants are receiving lower quality legal representation than their counterparts in jurisdictions with public defender systems, and that poor-quality representation results in longer sentences and thus increased incarceration costs.

Saturday, July 23, 2011

When it comes to homelessness, the public and policymakers must pick their poison: No matter what is done, somebody is going to complain. A pair of stories caught my eye portraying homeless problems in Dallas and San Francisco, respectively. (The last time I was in SF a few years back they had a tremendous homelessness problem; I can recall literally having to step over folks walking down the sidewalk, along with all the other passersby.)

In Dallas, reports a local TV station, "Main Street Gardens Park in downtown Dallas has become a bit of a homeless haven during the overnight hours. Residents heading to the park for an early morning dog walk are met by homeless people sleeping on benches, playground equipment, or whatever else may be in the park." The response to the story: "residents should start to see an increase in police presence around Main Street Gardens park almost immediately." Even in Big D, though, officials realize there's a limit to how effective a law eforcement response can be (particularly when the jail is already expensive and full):

For Dallas police, it's not just about enforcing the law anymore-- it's about getting the homeless in downtown Dallas the help they really need, so they won't feel they have to sleep in the park.

"We realize that just writing them tickets for just sleeping in pubic is not the answer," said Janse.

So now, officers will work with Crisis Intervention personnel. They'll even take take those found sleeping in public to shelters like The Bridge in downtown Dallas.

Jay Dunn, Managing Director of The Bridge said the shelter has 300 beds for adults, and once those beds are filled, the facility has buses to transport people to other shelters in the Dallas area that have room. He said there are some homeless people they have had trouble engaging, but they are working to reach out to the homeless in the downtown area each day.

Residents who live near Main Street Gardens park say they just hope to see results soon, before the park's new tenants start driving folks away.

So the problem is homeless people laying around in public with not enough shelters to house them without busing them off somewhere else, which in any event many resist. For that matter, some people understandably prefer fending for themselves on the streets to a homeless shelter with hundreds of others. A subset of homeless folks, many suffering from severe mental illnesses, cycle in and out of the jail near constantly - sometimes dozens of times a year. (The slang term for such folks in the Harris County Jail, which is today the largest mental health facility in Texas, is "frequent flyers.") So what's the longer term solution?

The most effective response I've heard of - something being tried out in Fort Worth, actually - is supportive long-term housing for the chronically homeless. But somebody's inevitably going to complain about that, too. There's a story out of San Francisco titled "Supportive housing: Cure for homelessness or community burden," where neighborhood residents also have complaints about that program. Neighborhood activists complain bitterly when such facilities are opened in their area. However, upon implementing its supportive housing program, "In its first year and a half, the number of homeless in San Francisco dropped by 28%."

One of the SF program critics declared: "It's a containment zone, it's absolutely a containment zone for crime and for the poor." Continued Mark Ellinger, "They're all containment zones, each one of these master lease hotels. They all have huge, huge crack problems. It's not like nobody knows about it - of course the city knows about it. Is there anything done about it to change it, to improve the situation? No, never. Never. Because it's contained."

Even granting all the speakers' presumptions about what's going on behind closed doors, isn't "contained" better than not contained? Would you rather have the problem of the Dallas neighbors, with homeless folks laying around the local park, or that described in San Francisco where the problem is "contained" through supportive housing? Containment may be the best we get on homelessness: It's not like there's an obvious solution to hand.

So the question becomes: Do cities want to manage the problem as a criminal justice issue, with homeless people either outdoors in the street or locked up the jail, or are urban neighborhoods better off when the homeless have a place to go? It may not be great for property values to have low-or-no rent housing on your block, but isn't that better than people lying on sidewalks and park benches? Supportive housing keeps those it serves off the street at night, as well as creating one-stop-shopping venues to provide mental-health, addiction, employment and other services to help folks get back on their feet. It's expensive, but so is dispatching police, taking people to jail, treating mental illness through the justice system, trying to process Class C tickets on people with no address, or busing people to far away shelters.

These are difficult problems, with every "solution" bringing its own, new complaints. But the whole "trail 'em, nail 'em and jail 'em" approach is particularly ill-suited to the situation, and to me it makes a lot more sense, whenever possible, to address homelessness with homes instead of cops.

Friday, July 22, 2011

Jordan Smith at the Austin Chronicle has a couple of notable items related to Austin PD and its alumni that merit Grits readers' attention:

Peeking behind the curtain at police misconduct data
For starters, Jordan offers further analysis of the recent Austin police monitor's 2010 annual report (pdf, discussed on Grits here), honing in on the fact that Austin PD acts on complaints from other officers but not usually from the general public: "Seventy-nine percent of all allegations of misconduct made against police officers by colleagues inside the Austin Police Department were sustained by supervisors, according to the 2010 annual report released last week by Austin Police Monitor Margo Frasier. That number stands in stark contrast to the outcome of complaints made to the Police Monitor's Office by members of the public. Just 11% of the allegations made in so-called "external" complaints were sustained by the subject officer's chain of command." So 89% of complaints by the public are not sustained compared to 21% of complaints by officers: a 4.2 to 1 disparity in the likelihood a complaint will be rejected by APD brass.

She also picks up a tidbit I'd missed: The monitor's report broke down complaint outcomes (in aggregate) which in the past have been kept secret from the public: "Of the formal complaints made by the public that were sustained, half resulted in an oral reprimand and counseling for the disciplined officer; a majority of disciplined officers given complaints from a colleague received either a written (32%) or oral reprimand and counseling (32%). A large percentage of internally generated complaints (more than 40%, Frasier says) involve officers damaging city-owned police cars." It doesn't seem like much, but that's more than has ever been reported in the past about complaints that do not result in more serious punishment.

Nothing too earth shattering in the report - either Frasier's or Smith's - but it's great to see the Austin Police Monitor's office really ascending to relevancy for the first time under Frasier's leadership. Years ago I helped create a political action committee called the Sunshine Project for Police Accountability that campaigned throughout the late '90s in Austin for the creation of the police monitor's office, but save for a brief glint of life under the first-ever Monitor, who soon departed, the whole concept has been a severe disappointment. If Margo Frasier keeps it up, though, she'll quickly turn around my pessimistic view, which while entrenched is not irrational. The office always had a lot of "bully pulpit" potential that none of Frasier's predecessors had the gravitas nor willingness to use. Much to Chief Art Acevedo's chagrin, the former Sheriff possesses both.

Peeking behind the curtain at police union politics
Former Austin Police Association President Mike Sheffield is ironically in a labor dispute with his employers at the Combined Law Enforcement Associations of Texas, Jordan reports:

Mike Sheffield, the retired Austin Police Department detective who was president of the Austin Police Associa­tion for eight years before retiring in 2006, was fired July 18 from his job as a field representative and training coordinator with the Combined Law Enforcement Associations of Texas, the state's largest police union. The reason? ... Sheffield says he's in the process of retaining an attorney and that he will appeal his termination to an arbitrator. Moreover, he says he'll file a complaint with the federal National Labor Rela­tions Board, via his local union (interestingly, the International Union of Painters and Allied Trades, District Council 88), because he believes his termination is "in large part" related to his candidacy in a run-off election to become president of the CLEAT staff union. "It's very clear, in my opinion, that the executive director of CLEAT was using any excuse in an effort to influence the outcome of that election," says the retired detective.

I have no knowledge of the merits of this case, but let me be clear up front that I hope Mike Sheffield is wrong and the recipient of a good bench slapping. Not for any good public policy reasons nor because I believe the union wasn't trying to sabotage his candidacy, but because I was on the losing end of so many fights with Mr. Sheffield over the years - including over the creation of the Police Monitor's office, which he successfully gutted in closed-door negotiations - to the point that I now can't help but engage in schadenfreude. ;) (Just kidding, Mike!)

And speaking of union politics, earlier this month, Jordan had another good piece describing the controversy within the Austin Police Association - a CLEAT member organization where Sheffield used to be president - over the purchase of a $1 million union hall without a vote from the membership. Personally I'm all for APA buying an expensive building because the $400,000 in savings they spent on a mortgage downpayment means that much less money available to send out mailers on behalf of sycophantic city council candidates, etc., at election time. That doesn't mean it's a smart move for them, and in fact I can see why it's drawing heat: as a practical matter it depletes resources that would otherwise be available for political activity (or defending members from misconduct charges) and commits more future revenue to a new facility than APA previously paid in rent. Even so, from Smith's reporting it sounds like APA leadership already entered into the loan agreement and the real estate deal is more or less a fait accompli,unless something dramatic happens following the fall elections.

Lamb County District Attorney Mark Yarbrough once wrote in a memo that Sal Abreo was a liar; but in court Thursday Yarbrough told a different story.

Yarbrough said he wrote that Abreo was “the worst Texas Ranger you will ever meet,” and that “he lied to me to get me to file this case,” because he was frustrated with Abreo and didn’t really mean it.

The memo was penned two years after the impetus for Yarbrough’s frustration.

He said Abreo, the lead investigator in the 1996 murder of Evangelina Cruz, told him one thing about a witness which conflicted with her statement; but because Abreo cleared it up in another report, he never really lied, Yarbrough testified.

Claims of Abreo’s deceit and corruption have been a dominant issue in the civil rights suit filed by Alberto Sifuentes and Jesus Ramirez — the trial of which is close to entering its fourth week. ...

Sifuentes and Ramirez were arrested, convicted and imprisoned for the 1996 shooting death of Evangelina Cruz at the Littlefield Jolly Roger.

When an appeals court overturned their convictions and a Lamb County grand jury declined to indict, the pair of Mexican nationals sued the law enforcement and prosecutorial individuals and entities they say violated their constitutional rights to wrongly convict them.

Speaking of the Driver Responsibility Program (DRP), the Lubbock Avalanche Journal had a recent story ("THA representatives visit with Lubbock, hospital officials," July 13) about a Texas Hospital Association meeting where medical officials discussed a legislative development I wasn't aware of, but which will make it much more difficult to abolish the problematic surcharge in the future: A whopping 23% cut in trauma center funding. A critical passage from the article reads:

Patients may also see hospitals adjust funding to continue trauma care. The state budget cut trauma funding by 23 percent, however numerous attempts to repeal the Driver Responsibility Program, a major source of funding, failed.

The Driver Responsibility Program was created in 2003 to establish a system that assesses points and surcharges for certain traffic offenses. ... Those surcharges fund a program that, in turn, funds trauma centers.

“We’re grateful for what we have, but at the end of the day they ought to appropriate the funds they passed legislation for,” [THA President Dr. Dan] Stultz said of the amount of funding appropriated by the Legislature through the Driver Responsibility Program.

The cuts could have a large impact on Covenant, a level-two trauma center, and University Medical Center, a level-one trauma center, the highest level of care out of the country's five-part trauma care structure. ...

One Texas hospital dropped from a level-three to a level-four trauma center after the legislation passed, Stultz said.

That's pretty pathetic: The majority of surcharges assessed go unpaid, but with legislative cuts of 23% to trauma care budgets, increasingly the Driver Responsibility surcharge has become the pivotal, if a precarious method for funding Texas trauma hospitals. What's more, as alluded to in the quote above, the Legislature doesn't even allocate all the DRP money to hospitals, instead diverting millions to balance the budget.

The DRP's original, stated purpose - at which it's miserably failed - was to encourage drivers to purchase liability insurance, renew their licenses, and to discourage DWI. Instead, the surcharge has caused about 2 million drivers to lose their licenses for non-payment, with around 1.2 million remaining unlicensed to this day. That in turn leaves them ineligible for insurance, including thousands of drunk drivers. (Nearly a quarter of Texas drivers statewide remain uninsured.) Though only 3% of those assessed the surcharge were convicted of DWI, for them the surcharge is so draconian that prosecutors have begun pleading DWI charges down to things like "reckless driving" or obstructing a roadway," resulting in a 29% decline in total DWI convictions in the first four years after the surcharge was implemented, even though DWI arrests increased over the same period.

If it was a public-policy error to create the DRP to supplement hospital funding, it's an even greater mistake to reduce other state funds to trauma centers so that the DRP becomes - from the hospitals' fiscal perspective - utterly indispensable, even though a few years ago the surcharge didn't even exist. The public-policy goal should be to reduce trauma centers' reliance on the surcharge, not to maximize its importance for them.

There's a saying in politics: "Let the big dogs eat." Hospitals are a big dog and they need to get theirs. So I want them fully funded both for political reasons and because I want reliable trauma centers available when terrible things happen. (High functioning trauma centers are arguably a bigger driver of declining murder and automobile death rates than ever-more traffic laws or improved police tactics.) But the Driver Responsibility surcharge is a problematic and unreliable financing method. As a practical matter, nobody wants to see trauma hospitals receive even fewer funds than they get now, so abolishing the Driver Responsibility surcharge (in some future legislative session) will require creative thinking about how to replace that money. In other words, for those of us who'd like to defenestrate the surcharge like some 15th century Prague city councilman, there's not just one task but two: Abolish the surcharge AND find another, better, more reliable funding mechanism for trauma centers. The former likely cannot happen unless and until the latter does, too.

On a final note, the 23% haircut for Texas trauma center hospitals contrasts dramatically with the paltry reduction in spending at the Department of Criminal Justice (where the Lege spent more in some areas and concentrated most cuts in probation and diversion programming). This dissimilitude provides a clear expression of priorities: What got cut and whose funds got saved? To the 82nd Legislature, incarceration funding was virtually a sacred cow while trauma centers - where average people are taken if they're seriously injured - were deemed a secondary priority that it's okay to axe. (Ditto for schools.) Budgets are moral documents and the morality expressed in Texas' most recent one seems suspect, at best.

Thursday, July 21, 2011

This morning I went over to the Department of Public Safety headquarters for a little public-comment time with the Public Safety Commission (PSC) at their monthly meeting. The subject: Enacting an "incentive program" under Driver Responsibility Surcharge rules to reduce costs for drivers who pay the full cost up front by as much as 50%.

Regular readers will recall that in 2009, State Rep. Sylvester Turner secured an amendment requiring the PSC to at least implement an indigency program. Then two years ago about this time, this blog filed a formal petition for rulemaking with the PSC asking them to create indigency, amnesty and incentive programs for the surcharge - all of which had been authorized under state law in 2007 but never enacted. Agency staff first proposed doing nothing but an Indigency program in bare minimal compliance with the law, but commissioners took a personal interest in the subject, insisted on including Amnesty provisions, then sent staff back to the drawing board with orders to accept more input and come up with a new proposal. DPS formed a stakeholders' working group on which your correspondent served along with representatives from trauma center hospitals and the lovely and talented Amanda Marzullo, then an attorney with the Texas Fair Defense Project who has sadly moved on to greener pastures.

As a result of that process, DPS suggested three new sets of rules which were all submitted to the Public Safety Commission: Amnesty, which was enacted and earlier this year cleared the records of more than 100,000 drivers; Indigence, which took effect in May and reduces fees for drivers under 125% of poverty; and an "Incentive" program cutting fees for drivers who pay off the surcharge up front. The Incentive rules, though, were placed in the Texas Administrative Code along with the others but not given an effective date: In other words, it would require additional action by the Commission to breathe life into the Incentive rules. But now the Legislature has directed them to do so..

The last time I was at the Public Safety Commission was to thank their members for enacting the Amnesty and Indigence rules, and to urge them to enact the Incentive rules they'd created as soon as feasible. Chairman Allan Polunsky replied that, because of potential fiscal implications, the PSC had done all they felt they could do on their own regarding the surcharge and would be "looking for direction from the Legislature" before implementing the Incentive rules or otherwise altering the program.

Then came the 82nd Texas legislative session. Despite the Senate Criminal Justice Committee's interim recommendation that the surcharge be abolished, the 9-figure fiscal hole that would create deterred legislators from acting on bipartisan proposals to do just that. Instead, your correspondent asked state Reps. Ryan Guillen and Armando Walle to amend a bill Guillen was carrying - which would have allowed full, 100% payment one-time of surcharges up front - to require implementation of the Incentive rules sometime during this biennium. (Literally the entire amendment was to delete a "may" in the old law and insert "shall." ) As a result of Walle's amendment to Guillen's bill, not only do people still get to pay early, as Guillen's original bill would have allowed, once the Incentive rules are passed, they'll get a 30-50% break if they pay in the first 30-90 days after the surcharge is assessed. Here are the reductions under the TAC rules:

50% of all three years of surcharges assessed for each offense if payment is made within 30 days.

60% of all three years of surcharges assessed for each offense if payment is made within 60 days.

70% of all three years of surcharges assessed for each offense if payment is made within 90 days.

State Sen. John Whitmire carried the bill in the eastern wing of the capitol, but it passed without opposition or controversy in both chambers. Today I showed up at the PSC to put the issue onto their radar screens - it's a good thing, too, since commissioners didn't seem aware of the change - and to ask them to push the process along as quickly as possible. It's understandable they didn't know about it. A DPS attorney told the PSC that 50 different bills this session required some form of rule change. The agency is still sorting out which to prioritize and which need more vetting before they're ready for consideration.

I argued that implementing Incentive rules should be near the top of their priority list. After all, the rules have been well-vetted by stakeholders in an agency-convened working group, published in the Texas Register, interrogated at a public hearing, and formally (though without an effective date) put into the state Administrative Code. The PSC only need pull the trigger to activate the new rules. That would require another Texas Register notice, but since they were ordered to enact the rules by the Legislature, the process shouldn't be controversial. Col. Steve McCraw, himself not a fan of the surcharge, told the commission that staff would be bringing them the rule changes soon.

Several related issues Grits raised with commissioners:

First, for whatever it's worth, I asked the PSC to consider holding another Amnesty sometime in the relatively near future, hopefully with a couple of upgrades to the process from this spring. Promotion is a big one: There need to be more concerted efforts to notify people eligible for Amnesty, including planning ahead so the vendor notifies folks specifically about the program rather than just add one inconspicuous sentence to a dunning letter.

Also, we learned a few things about the Amnesty program during this first trial run, and one unexpected tidbit is that many drivers who are eligible for Amnesty actually need pay nothing if they applied to clear their record. The reason is that the charge is 10% up to $250, and many people have already paid more than that. Often they began paying their surcharges, or paid the first year, but just couldn't keep it up for three years - when the surcharge comes to compete with one's water or electric bill, it slides down the priority list. Still, a lot of folks pay significantly into the system before stopping. I suggested that the PSC tweak the Amnesty rules to identify in their databases everyone who would be eligible for Amnesty without paying any additional money, and clear them administratively instead of requiring a pro-active request from the applicant. That overcomes the problem of promotion entirely for a large number of people eligible for the Amnesty program (though not the Incentive and Indigence programs) Why not just take the opportunity, I suggested, to clean up the system of so many of these old cases and let potentially hundreds of thousands of drivers get on with their lives?

The final suggestion I offered related to the vendor contracted to perform collections for the Driver Responsibility program - Municipal Services Bureau out of Austin. Now that the Driver Responsibility program has expanded to include the Amnesty, Indigence, and soon the Incentive programs, the contract with MSB should be updated to have them perform communications tasks related to those programs as well as straight-up collections functions. Robocalls, at a minimum, should be employed to reach eligible drivers where numbers are available (MSB does them for their regular collections regimen), and potentially direct mail as well (just like they mail out dunning notices). The contract with this vendor and the communications services provided under it haven't kept up with the new demands from the Legislature and DPS rules. And since the vendor is paid off the top from the surcharge revenue, there's really no reason not to contract for those additional services - at least it won't come out of the agency's budget. Commissioner Carin Barth mentioned that the vendor's contract isn't up until 2013, but based on their past presentations to the PSC, I bet they could be convinced to adjust it.

Making predictions in politics is a fools game, but it wouldn't surprise me to see DPS publish rules to enact the Incentive program by this fall or next spring at the latest. The Legislature has given them plenty of cover - in fact, they've issued a command - and all the prep work has been done. Naturally, I'd rather see the surcharge abolished entirely. Incentive rules, like the Amnesty and Indigence rules before them, are not a cure-all, but they help a lot of folks until the day abolition becomes politically feasible. Plus, debates about the rules serve to educate policymakers and stakeholders about problems with Driver Responsibility surcharge, keeping the issue alive and current so that someday - possibly not until the fiscal crisis is behind us - there could be sufficient momentum to rid the state of this ignominious tax-by-another-name altogether.

Until then, promptly enacting the Incentive rules would be a great and (now legally) necessary next step.

Wednesday, July 20, 2011

More layoffs affecting prison healthcare at UTMB, reports Harvey Rice at the Houston Chronicle ("UTMB to lay off 250 employees," July 20). The university:

announced in an internal memo sent to employees Tuesday that 130 jobs would be cut from its prison-system health services and 120 jobs from academic, health and support services.

The memo from UTMB President David Callender said the reductions were made to compensate for $114 million the Legislature slashed from the medical school's 2012 budget.

The prison system jobs would be lost at prisons statewide that are serviced under a contract with the Texas Department of Criminal Justice.

Last summer UTMB laid off more than 350 prison healthcare employees, and before that even more were laid off after Hurricane Ike. So the cuts now must be slicing pretty near the bone. Further, regular readers know, the cuts come at a time when changes in the financing structure for inmate healthcare could boost demand for services.

Perhaps Prison Doc, Nurseypooh, and other Grits commenters who work inside the system can elaborate on what's going on and what it will mean for prisoner healthcare going forward. In the meantime, here's an FAQ (pdf) from the agency about the layoffs.

Tuesday, July 19, 2011

Ever since Grits performed a rather extensive analysis of Judge Elsa Alcala's criminal opinions from the First Court of Appeals, I've been interested to see where Governor Perry's latest appointee to the Texas Court of Criminal Appeals will fit in with Judge Keller and Co.. Every member of the Texas CCA is a rock-ribbed Republican with impeccable pro-death penalty, pro-law enforcement credentials, which is why in Grits view there's no "liberal" faction on the court nor even a centrist one. There's a conservative faction and a more or less totalitarian wing whose goal is to convict at any cost and who reliably side with the government nearly across the board in their rulings. Alcala replaced a member of the more moderate/conservative wing of the court. How will she position herself among her colleagues?

In 1999, Neal Robbins was convicted of capital murder and sentenced to life in prison for the death of his girlfriend’s 17 month-old child. The cause of death as reported by the medical examiner was asphyxiation by compression. The medical examiner testified to her theory at trial and despite contrary evidence that the compression wounds may have resulted from adult administered CPR, the jury convicted Robbins of capital murder.

In 2007, at the urging of one of Robbins’s acquaintances, the original findings of the medical examiner were reviewed by the Harris County Medical Examiner’s Office. The Deputy Chief Medical Examiner disagreed with the findings and the trial testimony of the original medical examiner. The autopsy report was then amended to reflect that the cause and manner of death was “undetermined.” Eventually, the original medical examiner was asked to review her prior findings. In a letter to the district attorney, she stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of "undetermined" is best for this case.

She went on to explain that the bruises she originally equated with asphyxiation by compression could have resulted from aggressive CPR and other efforts to assist the child.

Armed with the recantation of the chief government witness, Robbins filed an application for writ of habeas corpus in June of 2007. The State did not oppose the application and recommended that Robbins be given a new trial “because his due process rights to a fair trial and impartial jury were violated.” In response, the trial court appointed yet another medical to review the evidence and offer an opinion. This time, the chairman of the Department of Pathology at Baylor College of Medicine opined that the original determination of the cause of death, as presented in the capital trial, could not be supported by the evidence.

Not satisfied with this opinion, the trial court ordered one last review by another pathologist. This last and final pathologist stated that it was her opinion that the child’s death was a homicide and that the manner of death was asphyxia by suffocation (a theory not presented at the original trial). After this finding, the State withdrew its recommendation that a new trial be granted, but agreed not to oppose the request for a new trial.

After an evidentiary hearing into the cause of the child’s death, the trial court recommended that the Texas Court of Criminal Appeals grant Robbins’s request for a new trial.

A slim majority (5-4) of the CCA was not equally convinced.

The majority opinion (pdf) in the 5-4 decision declared that testimony by a medical examiner about an autopsy "has not been proven false" even though the medical examiner (ME) herself and numerous other experts concurred that her trial testimony gave the jury inappropriate conclusions not supported by science. In this case the CCA was more pro-government than the government: Prosecutors in the case had concurred with the habeas writ and the lower court judge concluded that the recanting ME's "opinions were the sole bases of the State's case as to cause and manner of death, without which the State would not have obtained a conviction."

This case demonstrates well why the Legislature needs to pass the bill carried both in 2009 and this last session by State Sen. John Whitmire and state Rep. Pete Gallego that would allow habeas writs to proceed where science changes and experts agree testimony at trial was false. The bills were blocked both sessions by the Harris County District Attorneys Office, though the Dallas DA supported the change and the bill was recommended by the Timothy Cole Innocence Advisory Panel during the interim after the 81st session.

In Robbins' case, one also sees shades of the Todd Willingham controversy: The science supporting both men's convictions - portrayed as conclusive to the respective juries - has now been debunked. The state's theory of the crimes thence becomes mere assertion with no factual support. But because no one can prove a negative - in this case that the child wasn't strangled (the cause of death is now considered undetermined) - the CCA majority said prosecutors and lower court judge got it wrong. Now, barring a pardon from the governor or future clemency from the parole board, Mr. Robbins will stay in prison - quite possibly innocent - to serve out his life sentence.

Judge Cochran wrote a dissenting opinion arguing that, while in her view Robbins hadn't definitively proven his innocence, "given the experienced trial and habeas judge’s legitimate and serious concerns about the impact of [the medical examiner’s] testimony at trial on the critical and hotly disputed issue of [the child’s] cause of death, I agree that applicant did not receive a fundamentally fair trial based upon reliable scientific evidence."

But Judge Elsa Alcala - the new kid on the block - wrote a rather stinging opinion that shows how tepid and moderate even the conservative bloc on the CCA has become. Her dissent (pdf) opens:

The Due Process Clause of the Fourteenth Amendment is violated when the State knowingly or unknowingly uses perjured testimony to obtain a conviction. Ex parte Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim. App. 2009); Ex parte Napper, 322 S.W.3d 202, 242 (Tex. Crim. App. 2010) ("Chabot simply stands for the proposition that the preponderance of the evidence standard is appropriate for the unknowing use of perjured testimony that the habeas applicant had no prior opportunity to discover."). The term "perjury" in this context requires proof that the testimony "gives the trier of fact a false impression," but it does not require proof of the elements of "perjury" as that term is defined in the penal code. SeeEx parte Ghahremani, 332 S.W.3d 470, 477-78 (Tex. Crim. App. 2011); see alsoNapper, 322 S.W.3d at 242 (citing Estrada v. State, 313 S.W.3d 274, 287 (Tex. Crim. App. 2010) ("[W]e held on direct appeal that false testimony that was not perjury resulted in a due process violation when there was 'a fair probability that [the] death sentence was based upon . . . incorrect testimony.'").

The trial court found that Dr. Moore's trial testimony was false. The trial court's findings state that "Dr. Moore's trial opinions were not true. They were based on false pretenses of competence, objectivity, and underlying pathological reasoning, and were not given in good faith." The trial court characterized her testimony as "expert fiction calculated to attain a criminal conviction." The record supports the trial court's characterization concerning the falseness of the testimony.

The record shows that, as the sole witness establishing cause and manner of death for the State at Robbins's trial, Dr. Moore testified that, based on her scientific opinion beyond a reasonable doubt, the cause of Tristen Rivet's death was asphyxia due to compression of the chest and abdomen, and the manner of death was homicide. In her evidence concerning this application for a writ of habeas corpus, she now concludes that the cause of death was, beyond a reasonable doubt, not compression asphyxia, and undeterminable as to homicide, asphyxial or otherwise. Dr. Moore's subsequent testimony is a complete refutation of her trial testimony because, although her trial testimony stated that, beyond a reasonable doubt, the cause of death was compression asphyxia and the manner of death was homicide, she now says that the cause and manner of death are, beyond a reasonable doubt, "undeterminable." Both positions cannot be true. This wholesale refutation of her previously professed scientific certainty nullifies the veracity of the conclusion itself.

I recognize that, as noted by the majority opinion, the record shows that neither Dr. Moore nor any of the other testifying experts can "exclude" asphyxial homicide as a possible cause of death or "rul[e] out other reasonable hypotheses by which Tristen died." In other words, because Dr. Moore presently acknowledges that the cause of Tristen's death could possibly have been homicide and possibly by asphyxiation, the majority opinion determines that her new testimony does not show that her earlier testimony is false. But Dr. Moore is merely acknowledging the possibility that this cause and manner of death could be true because her opinion is, beyond a reasonable doubt, that she does not know the cause and manner of death. The fact that a witness acknowledges a mere possibility of an alternative hypothesis is not a failsafe escape for due process violations.

The Supreme Court has disallowed this technical splicing of the truth to avoid due process violations. In evaluating whether evidence is false, it has focused on whether the testimony, taken as a whole, gives the jury a false impression.

For Alcala, the issue was simple: "Robbins's due process rights were violated by the false, material trial testimony by the State's sole medical expert establishing cause and manner of death,” she concluded, an error made more egregious because, the trial court had found, the ME's opinion was "not given in good faith." Another notable tidbit came from a footnote where she explained why she did not join Judge Cochran's dissent:

Although I agree with many of the assessments in the Honorable Judge Cochran's dissenting opinion, I do not join that opinion because the change in Dr. Moore's testimony is not due to new scientific principles but is instead, according to her, due to her having more experience as a medical examiner, and according to the trial court's findings, due to her trial testimony being the result of prosecutorial bias. None of the medical examiners who testified for the application for writ of habeas corpus describe their testimony as stemming from new scientific principles.Compare Ex parte Henderson, 246 S.W.3d 690, 691 (Tex. Crim. App. 2007) ("That material [affidavits and reports of several scientists] indicates that what is called the biomedical analysis of infant head trauma (an area of scientific research that was beginning to develop in 1995 when applicant was tried and convicted) now shows that the type of head injuries that Brandon Baugh suffered could have been caused by an accidental short fall onto concrete."). The testimony Dr. Moore gave at the writ hearing concerning her uncertainty about cause and manner of death is very similar to the testimony given by Dr. Robert Bux, the medical examiner testifying for Robbins at the trial, and her changed testimony is not due to advances in science.

So Judge Alcala doesn't actually believe, from her reading of the record, that the science has changed. In her view, the erroneous testimony was "not due to new scientific principles but is instead ... according to the trial court's findings, due to [the ME's] trial testimony being the result of prosecutorial bias." Another footnote declared:

Dr. Moore acknowledges that she had been cited for improper work and evaluated as being biased in favor of the prosecution. Her supervisor, Dr. Joye Carter, had questioned her impartiality and suggested that she had not successfully transitioned into the neutral position of a forensic pathologist. Furthermore, Dr. Moore had provided similar recantations in other cases as well. This evidence seems to support the trial court's findings that the false trial testimony by Dr. Moore was not given in good faith. However, I need not reach the issue of whether Dr. Moore acted in bad faith, because Robbins has met the burden of proof to show by a preponderance of the evidence that he was harmed by Dr. Moore's false testimony.

Bravo, Judge Alcala! It's been a while since we've seen that kind of straight shooting from a judge on the CCA. I hope she keeps it up. Judge Barbara Hervey has given plenty of lip service to the need to reduce reliance on junk science, but the one thing the court has been unwilling to do is to use their own judicial authority to correct such problems. Judge Alcala seems to feel no such restraint, at least in this opinion; bully for her!

In the meantime, though, Mr. Robbins remains in prison, with a very good chance that he's actually innocent of the horrible crime for which he was convicted. Given that, Grits believes the Board of Pardons and Paroles and Governor Rick Perry should grant Mr. Robbins a pardon or at least a commutation of his sentence, since the courts refused to deliver justice in the case. To have his sentence commuted - see the requirements here (pdf) - would require "A written recommendation of a majority of the current trial officials (the present prosecuting attorney, judge, and sheriff/chief of police of the arresting agency from the county and court of offense," which given the court record one imagines he could get in this instance. It's a longshot, of course, but barring passage in some future session of writ-reform legislation, it's possibly the only chance Mr. Robbins has left, certainly in the state court system.

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